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Child pornography charges could be dismissed

Posted on August 06, 2011 12:00 AM EST

A former local elementary school teacher is currently facing child pornography charges in circuit court. Possession of child pornography is normally a third degree felony punishable up to five years in prison. A defendant can be charged with one count of every image in his or her possession. This case is interesting in that the Miami criminal attorney representing the defendant has filed a motion to dismiss the charges. The basis of the motion is that the defendant never downloaded or printed any of the illegal images. Court documents indicate that the defendant is accused of viewing child pornography from a computer located at the University of Miami computer lab.

It is very difficult to charge someone for viewing child pornography on a computer. Even though law enforcement can seize a computer through the use of search warrant and search the hard drive or internet memory for illegal images, prosecutors still have to prove that the defendant had knowledge that the images were present and that the images were actually downloaded by the defendant. Generally, prosecutors need the defendant to provide a statement to the police admitting to the illegal conduct. Anyone investigated for possession of child pornography should seek out assistance from qualified criminal lawyer prior to having contact with law enforcement authorities. If an arrest occurs prior to hiring an attorney remember to invoke your right to remain silent as it is in your best interests.

The authorities in this case are not relying on a statement provided by the teacher, but rather the assistance provided by one of the lab technicians. After drawing suspicion, the lab technician used a computer program to view what the defendant was viewing. She observed the defendant conducting searches for underage topless girls and other lewd photographs. The technician notified her supervisor who in turn contacted the Coral Gables Police Department. The detectives then set up surveillance cameras which captured the defendant looking at the child porn websites. Detectives also followed the defendant to shopping centers and supermarkets on Key Biscayne where it was feared that he was looking for underage girls. That part of the investigation turned up nothing and he was never charged for anything other than the child pornography at the computer lab.

The defense lawyer representing the defendant has filed a motion to dismiss based on the rationale that merely viewing images at the time when the defendant was arrested was not a crime because he never printed or downloaded any images. The argument is based on the fact that the Florida legislature only this year made it illegal to merely view child porn. The prosecution claims that the behavior was in fact criminal because the defendant had control over the images. The motion is set to be heard later in the month. The defendant is currently charged with 8 counts of possession of child pornography. If the defendant's attorney is successful all the charges will be dismissed. If unsuccessful, the defendant is facing up to forty years and may have to consider a plea bargain to avoid any jail time.

Miami-Dade Man Challenges Child Porn Arrest on Passage of New Law, Miami Herald.com, July 31, 2011.

Categories: Sex Offenses